Equity–cont’d

This post is a summary of how morality – derived from Christianity – influenced equity.

Why Christianity, you may ask. The answer is very simple. Christianity and the law grew together side-by-side, hand-in-hand over the past several centuries. At the time that the common law was taking root in England, Christianity was already entrenched as the majority religion.

Christian doctrine can arguably be credited with introducing equity’s core characteristic – conscience.

The increasing influence of the church on matters of state following the Norman Conquest in the eleventh century did herald a proliferation of ecclesiastical ideology into many areas of the administration. This included, under the reign of Henry II, an emerging and relatively settled system of common law established in civic courts. Thus, with this proliferation came an emphasis on conscience as one of the central precepts of apostolic thought.

It has been suggested that the office of Chancellor had long been the preserve of church men, notably monks that had first accompanied St Augustine from Rome around the sixth century. Timothy Endicott (1989) suggests that, as chancellors, these men possessed two characteristics that would prove vital to their success in the office. Moreover, they were the same characteristics that would so resolutely inform the judicial role of the Lord Chancellor in the Court of Chancery of later centuries. First, as literate men they were employed to manage the king’s correspondence, his letter-writing and diplomatic affairs. Second, as chaplains they were also keepers of the king’s conscience.

The first practising lawyer to assume the office of Chancellor was Ranulf Flambard (‘the torch’), during the reign of William II, known as William Rufus (1087–1100).

However, it was Thomas à Becket who would cement its legal and political significance by holding the office while also the Archbishop of Canterbury (1161). Thus Becket made Chancery that which ‘set the law of the Church as the standard for the king’s conscience’ (Endicott, 1989, p. 552).

When citizens could not obtain justice at the regular courts (King’s Bench, Common Pleas, Exchequer) – there were a limited number of writs available (we will learn about this later on) – they could petition the king for relief. These petitions were sent to the various Chancellors whose decisions over the next few centuries added to the body of the common law.

It should be noted that up to this point, chancellors were guided by their own individual conscience. However, that changed when Sir Thomas More became Chancellor. More held a series of debates with a fellow lawyer, Christopher St Germain who advocated a more objective and "legal" form of conscience; debates which were later published as Doctor and Student.

This more objective approach resulted in individual conscience being suppressed, and a rise instead of objective "rules" – vague, but rules nevertheless – that represented "conscience". The Judicature Acts of 1873 and 1875 merged or fused equity’s administrative jurisdiction in the Court of Chancery with the common law, thus largely creating the High Court of Justice we know today, and transforming the Court of Chancery into the Chancery Division. For a list of the maxims of equity, see below:

1 Equity sees that as done what ought to be done

2 Equity will not suffer a wrong to be without a remedy

3 Equity delights in equality/Equality is Equity (Aequalitus est quasi equitas)

4 One who seeks equity must do equity

5 Equity aids the vigilant, not those who slumber on their rights

6 Equity imputes an intent to fulfil an obligation

7 Equity acts in personam or persons

8 Equity abhors a forfeiture

9 Equity does not require an idle gesture

10 He who comes into equity must come with clean hands

11 Equity delights to do justice and not by halves

12 Equity will take jurisdiction to avoid a multiplicity of suits

13 Equity follows the law

14 Equity will not assist a volunteer

15 Where equities are equal, the law will prevail

16 Between equal equities the first in order of time shall prevail

17 Equity will not complete an imperfect gift

18 Equity will not allow a statute to be used as a cloak for fraud

19 Equity will not allow a trust to fail for want of a trustee

The above links to Wikipedia, which gives really simple explanations – at this stage. Remember, this is only an introductory law module.

Please remember though that neither this blog nor Wikipedia is suitable for academic referencing.

Equity–cont’d

Continuing where I left off in equity…

As previously mentioned, equality and equity and not the same thing. Let us be clear about this. Return to the previous post on equity, and take a look at the picture – it clarifies the difference quite clearly.

However, there is a clear link between equity and ethics. We may hear this word "ethics" thrown into conversations more and more often as we pursue the path of an LLB. But what is ethics?

The branch of philosophy that investigates morality and, in particular, the varieties of thinking by which human conduct is guided and may be appraised.

(Bullock and Stallybrass, 1977, p. 214)

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Note that morality and ethics are inextricably intertwined. We will also visit and revisit morality many times in future. But here's a question that may be pertinent at this time: is it possible to have morality without religion?

Background knowledge of ethics is an important part of understanding equity more fully. The interest that ethics has in the study of equity, and a role that can be attributed to equity more generally, is given contextualisation by reference to the work of the philosopher J.L. Mackie, who states that equity can alert us to the degree to which we ought to remain mindful of our actions on behalf of others, as well as checking our own natural inclinations or spontaneous tendencies to act (Mackie, 1990, p. 106).

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So how does ethics allow us to understand equity? Well, we have to understand that "we ought to remain mindful of our actions" and "our own natural inclinations or spontaneous tendencies" (how we react emotionally), and the effect our actions and emotions have on other people, and how they in turn react to our actions/reactions. When you think about it, every situation that leads to legal action is a result of some form of human interaction in which one party is led to believe that he has been treated unfairly or suffered some form of injustice – keep in mind that this is a form of a failed relationship. This is a very personal feeling, involving at its heart, ordinary people. This is often forgotten when complexities of the law arise.

When we think of equity therefore, we must also think in terms of justice and fairness. But it is not all subjective. After all, what one person may think will "put him right" might not – and often is not – what the other party thinks, or even often the court. So there must be an objective element.

So is it necessary for the law to become involved? The answer would be, "Of course!", if only to interject that objectivity.

Why then do we have equity? While the common law – and statutory legislation – strive to bring certainty to the law, there is no "one size fits all" solution to every single instance of perceived injustice. Equity then is the flexibility that is needed to make the law "bend" sufficiently to fit any situation.

‘Equity cannot remove the force of the law, but it can moderate its impact. Equity does not break rules, but merely bends them’ [Emphasis added.] (Watt, 2012, p. 2)

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to be continued…

Equity – What is it?

Given what we know about equity so far, how difficult would it be to get a definition? The answer may be surprising, especially if you were to consider the dictionary meaning: "the quality of being fair and impartial". It may surprise you to know that equity does not mean equality (as I had previously mentioned). In law, the real meaning of equity would be something like: "providing for individual needs in such a manner that the individual can live on equal terms with everyone else" (my words). To give you an idea of what I mean take a look at the following picture:

In the above picture, on the left, we can see that even though each person was treated equally, there is still an imbalance. On the right, each person as been treated according to his individual needs, but the result is that each person has equal opportunity (to view the game). To put it another way, equality is giving each person the same resources; equity is giving each person the resources that he or she needs to achieve equality – equity is the road and equality is the destination.

This is how the legal academic Gary Watt introduces ‘equity’:

The word ‘equity’ is used by the ‘haves’ and the ‘have nots’ in quite different ways, but always to denote something they hope to attain or retain. Whether approached from a religious or secular perspective, whether approached from a starting point of poverty or privilege, equity is universally considered to be something desirable, something to aspire to … Equity therefore has the potential to provide a language capable of traversing or filling some fundamental fissures in modern society.

(Watt, 2012, pp. 37–8)

Equality is a very important idea, and one that should be taken seriously. Since the late 1990s the importance of equality has been cemented in law by a number of high-profile pieces of UK government legislation, including the Human Rights Act 1998 and the Equality Act 2010. Yet equality alone cannot provide all the answers. Perhaps, as the image above suggests, when confronted with the novelty of individual needs an alternative method – one that does not rely upon treating everyone as identical – is required to ensure a reasonable chance of justice or fairness being achieved.

Thus, as this brief section has aimed to demonstrate, it is important to be aware of the problems that can and will arise if close attention is not paid to language and the context in which it is used. Where talking about justice, for example, it is not automatically about equality and vice versa. Likewise, equality cannot be automatically exchanged for equity.

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In trying to understand equity, we must understand that there are advantages or privileges that exist alongside disadvantages. To achieve equality we must address the imbalances. Consider this: would affirmative action fall under equity, or would it, in its own right, be considered discrimination?

It is worth paying attention to the subjective nature of emotions/feelings, as these play a very important role in whether a person feels he is treated fairly or not. While law has certain objective mechanisms within its structure to help achieve fairness, equity plays a key part in "ensuring a degree of humanity remains within the law". It helps to maintain a degree of balance within the legal system, but there is always that subjective aspect of emotions.

To be continued…

W101 – Equity: introduction

Unit 7 of W101 introduces equity. Equity is a part of the common law and is another source of law as mentioned before. Equity is a queer creature; described as a combination of “philosophy, social justice and legal doctrine and procedure”, equity has a long and rich history. The learning outcomes for this unit are:

Learning outcomes

After studying this unit you should be able to:

• describe equity’s philosophical foundations
• consider equity’s present place and role in the common law jurisdiction of England and Wales
• discuss some of equity’s key areas of intervention within the common law system, e.g. remedies
• describe key historical points in the development of equity
• discuss extra-legal concepts and their relationship to equity, e.g. justice, fairness and conscience.

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Equity was described by Aristotle as:

"When the thing is indefinite the rule is also indefinite, like the leaden rule used in making the Lesbian* moulding; the rule adapts itself to the shape of the stone and is not rigid, and so too the decree is adapted to the facts."

*A lesbian rule is a flexible rule used to draw smooth curves.

Photo of a Lesbian rule courtesy http://douglasbgibson.tumblr.com.

In other words, equity is flexible enough to find a solution that fits the problem. We will see how this works during this unit. Keep in mind that equity is both a foundational principle in legal philosophy as well as an ideal of social justice. Given that equity was recognised by Aristotle (384 – 322 BC), we can see that equity goes back more than 20 centuries! Of equity, Aristotle also said:

"Equity bids us be merciful to the weakness of human nature; to think less about the laws than about the man who framed them, and less about what he said than about what he meant; not to consider the actions of the accused so much as his intentions; nor this or that detail so much as the whole story; to ask not what a man is now but what he has always or usually been."

This excerpt demonstrates that equity can be divided into three broad but related categories which together form a starting point for thinking about equity. Equity is:

• a set of philosophical principles
• an ideal form of social justice
• a branch of legal doctrine and procedure.

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The most accurate representation of equity in the 21st century is the last of the above – as a form of legal doctrine and procedure – as it follows rules and precedent much as the common law.

Next: what is equity?